NATIONAL INSURANCE CO LTD vs PRABHAT KUMAR GUPTA

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, arises out of the order dated 12.4.2005, passed in Complaint No. 316/2004 by the District Consumer Forum, Raipur (hereinafter referred to as the ''District Forum'' for short) whereby the complaint was allowed by the District Forum.

BRIEF facts necessary for disposal of this appeal are that the complainant/respondent, who is an Advocate, had purchased a Nokia mobile handset from the O.P. No. 5 and the same was insured with the appellant. On 20.10.2004 the complainant went to take bath leaving the aforesaid handset on his study table. The door of the room was not bolted. When the complainant came after taking bath, he did not find the handset on the table. He lodged FIR with the police, the complainant also paid necessary fee and got the sim -card blocked. Thereafter the complainant preferred a claim with the insurer. However, the insurer repudiated the claim on the ground that during theft there was no forced or violent entry or exit as was necessary under the terms of the policy. Hence the complainant had approached the District Forum. It was averred in the complaint that force or violence is a necessary element for constituting the offence of dacoity but the same is not at all a necessary element for theft. It was further averred that the complainant had lodged his claim for theft of his handset and under the circumstances of the case he was entitled to get the claim and by repudiating the claim the insurer had committed deficiency in service. In their written version the opposite party Nos. 1 and 2/appellants denied the allegations of deficiency in service and averred that use of violence or force was a pre -condition for making payment under the terms of policy and in absence of the same the claim cannot be allowed.

THE learned District Forum allowed the complaint and came to the conclusion that the definition of theft had been provided under the India Penal Code and the insurer cannot add other elements/condition or works for constituting the offence of theft.

AGGRIEVED by the aforesaid order the Insurance Company has preferred this appeal. The learned Counsel for the appellant assailed the impugned order and urged that the learned District Forum erred in not appreciating the fact that insurance is a contract between the parties and both the parties to the agreement/contract are bound by the terms of the contract. He further submitted that the learned District Forum failed to appreciate the true legal import of the condition contained in Clause 1B of the Certificate of Insurance. The learned Counsel for the appellant placed reliance on United India Insurance Co. Ltd. v. M/s. Harchand Rai Chandan Lal, IV (2004) CPJ 15 (SC)=2005 (1) CPR 64 SC). The complainant/respondent reiterated the stand taken before the District Forum and supported the impugned order. The respondent further submitted that the order passed by the learned District Forum is a reasoned order and is just and proper in the facts and circumstances of the case and there is no need for any interference with the same.

THE only question to be decided by us is whether in terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not?

AS mentioned earlier the learned Counsel for the appellants relied on United India Insurance Co. Ltd. v. M/s. Harchand Rai Chandan Lal (supra). It is specifically held by the Apex Court that theft should have preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insured has to establish that theft or burglary took place preceding with force or violence and if it is not, then the Insurance Company will be well within their right to repudiate the claim of the insurer. In the case in hand it is an admitted position that there was no forced or violent entry or exit as was necessary under the terms of the policy. Hence, the aforesaid case law applies to the present appeal on all fours and as such the appeal is to be allowed. The observation in the aforesaid pronouncement is also very important wherein the Apex Court has also stated Though we have interpreted the present policy strictly in terms of the policy but we hope that the Insurance Companies will amend their policies so as to make them more meaningful to the public at large. It should have the meaning which a common man can easily understand rather than become more technical so as to defeat the cause of the public at large. We also hope that the Insurance Companies will take note of the same and act accordingly.

IN view of the aforesaid pronouncement, order of the District Forum cannot be sustained. This appeal is allowed, impugned order is set aside. Accordingly, the complaint is dismissed. Appeal allowed.